The fairness of any promotion can be challenged as unfair in terms of s186(2) of the LRA.  The policies of employers relating to promotion do not always provide for a deadlock situation.  In this matter the employer also considered the scores of the two observers.  This did not breach the policy and was regarded as being transparent, fair and objective.  The Labour Appeal Court rejected the argument that the scores should have been averaged arithmetically.  The appeal was allowed and the Labour Court’s judgment set aside and the award upheld on the basis of not being unreasonable.

Nelson Mandela Metropolitan Municipality (NMMM) v Mkumatela (PA/10/2011) [2016] ZALAC 6 (19 February 2016) per CJ Musi JA [Waglay JP and Savage AJA concurring]

Textbook: Du Toit Labour Relations Law: A Comprehensive Guide 6th ed (LexisNexis 2015) at p 547

See also: